Appeal from Order of the Court of Common Pleas, Civil Division, of Allegheny County, No. GD 81-08662.

COUNSEL

Raymond Radakovich, Pittsburgh, for appellants.

Louis Anstandig, Pittsburgh, for appellees.

Wieand, Popovich and Lipez, JJ.

Author: Wieand

[ 347 Pa. Super. Page 539]

The issue in this appeal is the validity of a waiver of trial by jury entered in a civil action in order to obtain a delay in the commencement of trial. The trial court held that the waiver was valid and denied a request to withdraw it immediately prior to commencement of a non-jury trial. We find no error in the trial court's ruling and affirm the judgment entered on the verdict of the court.

On August 20, 1979, a vehicle owned by Liquid Carbonic Corporation (Liquid Carbonic) and driven by Larry J. Wise, one of its employees, was involved in a collision with an automobile operated by Andrew P. Rodney. Rodney and his wife, Anna, brought a trespass action against both Wise and Liquid Carbonic to recover damages for injuries sustained by the husband-plaintiff as a result of the accident. The trespass action was heard by a board of arbitrators, which entered an award in favor of the defendants, Wise and Liquid Carbonic. The Rodneys filed a timely appeal and requested trial by jury in the Court of Common Pleas of Allegheny County.

The case was scheduled for trial on Monday, March 12, 1984. On Friday, March 9, 1984, the Rodneys' attorney moved for a continuance because of a scheduling conflict. The motion was granted by the calendar control judge who rescheduled the case for April 4, 1984. In the order granting the continuance appeared the judge's handwritten notation that the case was "to [be] heard non-jury upon the consent of all parties." The Rodneys subsequently changed their minds, and their lawyer informed opposing counsel that they again desired a jury trial. In an effort to confirm the non-jury status of the impending trial, counsel for the appellees requested that the Rodneys sign a written agreement to proceed non-jury. The Rodneys refused. Thereafter, Wise and Liquid Carbonic filed a motion to compel the Rodneys to elect between a jury and non-jury trial. The

[ 347 Pa. Super. Page 540]

object of this motion allegedly was to insure that the Rodneys would not elect at the time of trial to defer the case to a future jury trial list. This was necessary because of the inconvenience and expense inherent in appellees' preparation for trial, involving, as it did, the production of out-of-state witnesses. The motion was denied by the calendar control judge in an order dated March 28, 1984. The order neither referred to nor purported to affect the prior order directing the Rodneys to proceed non-jury; and the Rodneys themselves made no formal attempt to modify or withdraw the order directing a non-jury trial.

Prior to commencement of trial on April 4, 1984, counsel for the Rodneys informed the trial judge that Rodney had changed his mind and now wished to withdraw his consent to a non-jury trial. Rodney's request was denied, and the case was thereupon tried before the court sitting without a jury. After hearing all of the evidence, the judge entered a verdict in favor of Wise and Liquid Carbonic. Exceptions*fn1 were filed which alleged, inter alia, that appellants had been deprived of their right to trial by jury. The trial court dismissed the exceptions and directed that judgment be entered on the verdict. This appeal followed.

Section 25 of the Schedule to Article V of the Pennsylvania Constitution provides, inter alia, that " [u]ntil otherwise provided by law, the parties, by agreement filed, may in any civil case dispense with trial by jury . . . ." (Emphasis added). The Rodneys argue that this section required, at least by implication, a written agreement waiving the right to jury trial. Because their consent to proceed non-jury was not reduced to writing, they argue, it was not an effective waiver. Appellants' argument, however, ignores the fact that this constitutional provision, as allowed by its specific terms, was suspended by a contrary rule of law enacted by the legislature as part of the Judiciary Act of 1976, as amended. This statutory provision, appearing at 42 Pa.C.S. § 5104(a), provides as follows:

[ 347 Pa. Super. Page 541]

Except where the right to trial by jury is enlarged by statute, trial by jury shall be as heretofore, and the right thereof shall remain inviolate. Trial by jury may be waived in the manner prescribed by general rules. (Emphasis added).

The pertinent general rule is found in Pa.R.C.P. 1007.1. It provides that a trial by jury will be deemed waived unless it is affirmatively requested. See also: Dream Pools of Pennsylvania v. Baehr, 326 Pa. Super. 583, 587, 474 A.2d 1131, 1133 (1984); 7 Std.Pa.Prac.2d § 42.2 (1982). After a demand for jury trial has been made, it "may not be withdrawn without the consent of all parties who have appeared in the action." Pa.R.C.P. 1007.1(c).

That appellants agreed orally to waive the right to trial by jury is clear. This fact appears unequivocally from the order of court granting the requested continuance. This order recites specifically and unequivocally that the case was to be tried non-jury upon consent of all parties. The record of the non-jury trial also contains an admission by appellants' attorney that his clients, when seeking a continuance, had agreed to waive jury trial and proceed non-jury.

The voluntariness of the Rodneys' waiver was not impaired because it had been made to obtain a delay in the start of their trial. The right to trial by jury may be waived as part of an express agreement. Warden v. Zanella, 283 Pa. Super. 137, 140, 423 A.2d 1026, 1028 (1980); Neely v. J.A. Young & Co., 198 Pa. Super. 196, 199, 181 A.2d 915, 917 (1962); 7 Std.Pa.Prac.2d § 42.2 (1982). Although our courts have not directly addressed the issue presented by this case,*fn2 other jurisdictions have held that where a party exchanges his right to a jury trial for some tactical advantage to be obtained from the court, that party's consent is binding. In Hanlon v. Providence College, 615 F.2d 535 (1st Cir. 1980), the defendant had agreed during the first day of trial to waive his right to a jury if the court would hear his parol evidence de bene. The United States Court of

[ 347 Pa. Super. Page 542]

Appeals for the First Circuit concluded that the defendant had had ample opportunity to consult with experienced counsel and that his decision to waive a jury trial had not been coerced and was not involuntary. It was not error to deny a subsequent request for a jury trial. Id. at 538-539. See also: 60 C.J.S. Motions & Orders § 65 (1969) (". . . parties who have availed themselves of the benefit of the order are bound by it and may not be heard to complain of conditions imposed by it. A party may not question the validity of an order made at his request and on his stipulation.").

The decision of the Supreme Court of California in Hawes v. Clark, 84 Cal. 272, 24 P. 116 (1890), although not of recent vintage, is instructive because of its factual similarity to the instant case. In Hawes, the parties' contract action had been scheduled for trial before a certain judicial department of the Superior Court of San Francisco. In order to obtain a trial delay, the defendant's counsel offered to waive his client's right to a jury trial if, in return, the plaintiff's attorney would accede to a transfer of the case to another department. When counsel for the plaintiff agreed to the terms, the attorney for the defendant appeared in open court and consented to waive trial by jury. Applying reasoning that is as cogent today as it was in 1890, the California Court rejected a contention by the defendant that a subsequent request for a jury trial should have been granted. The Court said:

Id. at 275, 24 P. at 116.

Like the defendant in Hawes, the Rodneys agreed to waive trial by jury in order to obtain a delay in the commencement

[ 347 Pa. Super. Page 543]

of trial. There is no suggestion that appellants' waiver was otherwise coerced. As in Hanlon and Hawes, appellants' decision was made after consultation with and approval by their attorney. Having received the desired benefit of their bargain, the Rodneys cannot now complain that their consent to the agreement was not voluntarily given. We conclude, therefore, that the Rodneys' consent to proceed non-jury was an effective waiver of their right to trial by jury.*fn3

Appellants argue alternatively that although they initially consented to waive a jury trial, they later "rescinded [their] ratification of [the calendar control judge's] non-jury direction." Appellants' Brief at 12. Simply stated, they contend that they effectively withdrew their earlier consent to proceed non-jury. We disagree.

Appellants' attempted withdrawal of their jury waiver was inadequate for two reasons. First, because they made no formal attempt to withdraw their waiver of trial by jury until the day of the non-jury trial,*fn4 the granting of a demand for a jury trial at that late date would have caused unnecessary delay. This would have caused prejudice to Wise and Liquid Carbonic who already had incurred the expense of bringing out-of-state witnesses to court for trial. Second, when the Rodneys finally raised the issue with the

[ 347 Pa. Super. Page 545]

trial court, they failed to articulate any legal excuse to justify a withdrawal of their consent to proceed non-jury. At that time, their counsel told the court merely that his clients had changed their minds.

It seems clear, under these circumstances, that the trial court did not abuse its discretion by denying the Rodneys' belated request to empanel a jury.

The order entering judgment is affirmed.

Disposition

Affirmed.

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